2176.BUTLER.2204_UPDATED.DOCX7/1/2013 12:28:47 PM
Paul D. Butler
Poor People Lose: Gideon and the Critique of Rights
abstract. A low income person is more likely to be prosecuted and imprisoned
post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they
have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law
makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon
demonstrates this critique: it has not improved the situation of most poor people, and in some
ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even
full enforcement of Gideon would not significantly improve the loser status of low-income people
in American criminal justice.
author. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law
School, J.D. For helpful comments on this Essay, I thank Kristin Henning, Allegra McLeod,
Gary Peller, Louis Michael Seidman, Abbe Smith, Robin West, and the participants in a faculty
workshop at Florida State University College of Law. I am also grateful for the excellent editorial
assistance of Robert Quigley, Yale Law School, J.D. 2014.
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essay contents
introduction
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i. how poor people lose in american criminal justice
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ii. the critique of rights
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iii. the critique of rights, applied to gideon
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A. The Liberal Overinvestment in Rights
B. The Indeterminacy of Rights
C. Rights Discourse and Mystification
D. Isolated Individualism
E. Rights Discourse as an Impediment to Progressive Social Movements
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iv. other comments on rights discourse in criminal
procedure
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conclusion: critical tactics
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introduction
Gideon v. Wainwright1 is widely regarded as a milestone in American
criminal justice. When it was decided in 1963, it was seen as a major step
forward in assuring fairness to poor people and racial minorities. Yet, fifty
years later, low-income and African-American people in the criminal justice
system are considerably worse off. It would be preferable to be a poor black
charged with a crime in 1962 than now, if one’s objective is to avoid prison or
serve as little time as possible.
The “critique of rights,” as articulated by critical legal theorists, posits that
“nothing whatever follows from a court’s adoption of some legal rule”2 and
that “winning a legal victory can actually impede further progressive change.”3
My thesis is that Gideon demonstrates the critique of rights. Arguably, Gideon
has not improved the situation of accused persons, and may even have
worsened their plight.
The reason that prisons are filled with poor people, and that rich people
rarely go to prison, is not because the rich have better lawyers than the poor. It
is because prison is for the poor, and not the rich. In criminal cases poor people
lose most of the time, not because indigent defense is inadequately funded,
although it is, and not because defense attorneys for poor people are
ineffective, although some are. Poor people lose, most of the time, because in
American criminal justice, poor people are losers. Prison is designed for them.
This is the real crisis of indigent defense. Gideon obscures this reality, and in
this sense stands in the way of the political mobilization that will be required to
transform criminal justice.
I know that, for some readers, these claims are counterintuitive, and I ask
these readers’ indulgence for the time it takes to read this Essay, in which I will
attempt to prove my claims. It is also important to emphasize that I am not
making a “but-for” claim of causation. Gideon is not responsible for the
exponential increase in incarceration or the vast rise in racial disparities in
criminal justice. As I explain later, however, Gideon bears some responsibility
for legitimating these developments and diffusing political resistance to them.
It invests the criminal justice system with a veneer of impartiality and
1.
2.
3.
327 U.S. 335 (1963).
Mark Tushnet, The Critique of Rights, 47 SMU L. REV. 23, 32 (1993). Tushnet refers to this
component of the critique of rights as the “indeterminacy thesis.”
Id. at 26.
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respectability that it does not deserve. Gideon created the false consciousness
that criminal justice would get better. It actually got worse. Even full
enforcement of Gideon would not significantly improve the wretchedness of
American criminal justice.
In Lafler v. Cooper4 and Missouri v. Frye,5 the Supreme Court extended the
right to counsel to the plea bargaining stage of prosecution. Some people are
having a Gideon moment6: the Court’s rulings seem like important victories for
indigent accused persons because, as Justice Kennedy observed in Lafler,
“criminal justice today is for the most part a system of pleas, not a system of
trials.”7 It seems cynical and defeatist to recall Mark Tushnet’s observation that
“nothing whatever follows from a court’s adoption of some legal rule.”8 But
one goal of this Essay is to disrupt the “cruel optimism” that Gideon discourse
creates.
This Essay proceeds as follows. The first Part develops the claim that the
poor—especially poor African Americans—are “losers” in American criminal
justice and that providing them with more, or better, defense attorneys would
not substantially alter their subordination. Part II describes the critique of
rights, and Part III applies it to Gideon. Part IV compares the critique of rights
to other comments on rights discourse in criminal procedure. The Essay
concludes with some recommendations on what advocates for poor people
might do that would help them more than discoursing about rights.
i. how poor people lose in american criminal justice
Indigent persons are much more likely to go to prison today than in the era
when Gideon was decided. In 1960, the U.S. imprisonment rate was
approximately 126 per 100,000 population.9 By, 2008, the rate had quadrupled,
4.
5.
6.
7.
8.
9.
132 S. Ct. 1376 (2012).
132 S. Ct. 1399 (2012).
See Adam Liptak, Justices’ Ruling Expands Rights of Accused in Plea Bargains, N.Y. TIMES,
Mar. 21, 2012, http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants
-have-right-to-good-lawyers.html.
132 S. Ct. at 1388.
Tushnet, supra note 2, at 32.
Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850-1984,
BUREAU OF JUST. STAT. 30 (1986), https://www.ncjrs.gov/pdffiles1/pr/102529.pdf.
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to 504 per 100,000.10
African-American defendants are even worse off. In 1960, three years
before Gideon, the black incarceration rate was approximately 660 per
100,000.11 By 1970, it had fallen some, to slightly under 600 per 100,000.12 In
2010, the rate of incarceration among black males was an astronomical 3,074
per 100,000.13
For men hoping to avoid prison, being both poor and black is a lethal
combination. More than two-thirds of black males who do not have college
degrees will be incarcerated at some point in their lives.14 Black male high
school dropouts are more likely to be imprisoned than employed.15
What is it about being poor and African American that substantially
increases the risk of incarceration? The answer, rather obviously, has much to
do with class and race and, less obviously, little to do with the quality of the
indigent defense system. This Essay employs data about both race and class to
demonstrate this claim, but at the start I want to note that it is impossible to
disaggregate the effects of race and class. The answer to the questions, “Are
poor defendants treated unfairly because many of them are black, are black
defendants treated unfairly because many of them are poor, or is there some
other dynamic at work?” is “yes.”16 Indeed, the Gideon decision itself was
William J. Sabol, Heather C. West & Matthew Cooper, Prisoners in 2008, BUREAU OF JUST.
STAT. 6 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf.
11. See Margaret Cahalan, Trends in Incarceration in the United States Since 1880: A Summary of
Reported Rates and the Distribution of Offenses, 25 CRIME & DELINQUENCY 9, 40 tbl.11 (1979)
(reporting that there were 125,000 black adult inmates in the U.S. in 1960); Race for the
United States, Regions, Divisions, and States: 1960, U.S. CENSUS BUREAU (2002),
http://www.census.gov/population/www/documentation/twps0056/tabA-08.pdf (stating
that the U.S. black population in 1960 was 18,871,831).
12. See Cahalan, supra note 11, at 40 tbl.11 (reporting that 134,000 black adult inmates in the
U.S. in 1970); Race for the United States, Regions, Divisions, and States: 1970, U.S. CENSUS
BUREAU (2002), http://www.census.gov/population/www/documentation/twps0056/tabA
-05.pdf (stating that the U.S. black population in 1970 was 22,580,289).
13. Paul Guerino, Paige M. Harrison & William J. Sabol, Prisoners in 2010, BUREAU OF JUST.
STAT. 27 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf.
10.
Bruce Western & Becky Pettit, Incarceration and Social Inequality, DAEDALUS, Summer 2010,
at 8, 16.
15. Id. at 12.
16. For a discussion of the problems and benefits of analyzing modalities of subordination, see
Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI.
LEGAL F. 139, 166-67; and Kimberlé Williams Crenshaw, Race, Reform and Retrenchment:
14.
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explicitly a class intervention, but implicitly, like other Warren court criminal
procedure cases, a racial justice intervention as well.17
Approximately two decades after Gideon, two trends began in criminal
justice, the effects of which were to overwhelm any benefits that Gideon
provided to low-income accused persons. First, the United States experienced
the most pronounced increase in incarceration in the history of the world.18
Second, there was a corresponding exponential increase in racial disparities in
incarceration.
This dramatic expansion of incarceration was accomplished on the backs of
poor people. The Bureau of Justice Statistics reports that the “generally
accepted indigency rate” for state felony cases near the time when Gideon was
decided was 43%.19 Today approximately 80% of people charged with crime are
poor.20
Other data further illustrate the correlation between poverty and
incarceration. In 1997, more than half of state prisoners earned less than
$1,000 in the month before their arrest.21 This would result in an annual
income of less than $12,000, well below the $25,654 median per capita income
in 1997.22 The same year, 35% of state inmates were unemployed in the month
before their arrest, compared to the national unemployment rate of 4.9%.23
Approximately 70% of state prisoners have not graduated from high
Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988)
[hereinafter Crenshaw, Race, Reform and Retrenchment].
17. See JOHN HART ELY, DEMOCRACY AND DISTRUST 97 (1980); Michael J. Klarman, The
Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 763-66 (1991); Carol S.
Steiker, Second Thoughts about First Principles, 107 HARV. L. REV. 820, 838-52 (1994); see also
William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice,
107 YALE L.J. 1, 5 (1997) (“Warren-era constitutional criminal procedure began as a kind of
antidiscrimination law.”).
18. See Adam Gopnik, The Caging of America: Why Do We Lock Up So Many People?, NEW
YORKER, Jan. 30, 2012, http://www.newyorker.com/arts/critics/atlarge/2012/01/30
/120130crat_atlarge_gopnik (“Mass incarceration on a scale almost unexampled in human
history is a fundamental fact of our country today . . . .”).
19. Stuntz, supra note 17, at 7 n.7.
Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57
HASTINGS L.J. 1031, 1034 (2006).
21. Caroline Wolf Harlow, Education and Correctional Populations, BUREAU OF JUST. STAT. 1, 10 &
tbl.14 (2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/ecp.pdf.
22. Per Capita Personal Income by State, BUREAU OF BUS. & ECON. RES., http://bber.unm.edu
/econ/us-pci.htm (last visited Mar. 29, 2013).
23. Harlow, supra note 21, at 1, 10.
20.
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school.24 Only 13% of incarcerated adults have any post-high school education,
compared with almost 50% of the non-incarcerated population.25
College graduation, on the other hand, serves to insulate Americans from
incarceration. Only 0.1% of bachelor’s degree holders are incarcerated,
compared to 6.3% of high school dropouts.26 Put another way, high school
dropouts are sixty-three times more likely to be locked up than college
graduates.
The post-Gideon expansion of the prison population was also accomplished
on the backs of black people. There have been always been racial disparities in
American criminal justice, but from the 1920s through the 1970s they were
“only” about two-to-one.27 Now the black/white incarceration disparity is
seven-to-one.28 There are more African Americans under correctional
supervision than there were slaves in 1850.29 As Michelle Alexander states, “If
mass incarceration is considered as a system of social control—specifically,
racial control—then the system is a fantastic success.”30
In summary, poor people and blacks have never fared as well as the
nonpoor and the nonblack in American criminal justice. Since the 1970s,
however, the disparities have gotten much worse. Something happened that
dramatically increased incarceration and dramatically raised the percentage of
the incarcerated who are poor and black. What happened is usually attributed
to two main causes: the war on drugs and the law-and-order or so-called
tough-on-crime policies of American leaders since the Nixon Administration.31
24.
25.
26.
27.
28.
29.
30.
31.
Id. at 1.
Id. at 1-2 & tbl.1.
Andrew Sum, Ishwar Khatiwada & Joseph McLaughlin, The Consequences of Dropping Out of
High School: Joblessness and Jailing for High School Dropouts and the High Cost for Taxpayers 10
(Ctr. for Labor Mkt. Studies Publ’ns, Paper No. 23, 2009), http://hdl.handle.net
/2047/d20000596.
Pamela E. Oliver & Marino A. Bruce, Tracking the Causes and Consequences of
Racial Disparities in Imprisonment 2-3 (2001) (unpublished project proposal
to the National Science Foundation), http://www.ssc.wisc.edu/~oliver/RACIAL/Reports
/nsfAug01narrative.pdf.
Heather C. West, Prison Inmates at Midyear 2009—Statistical Tables, BUREAU OF JUST. STAT.
21 tbl.18 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/pim09st.pdf.
MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 271 n.7 (2010).
Id. at 225.
See id. at 271 n.7; see also WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE
136 (2011) (describing the period between Reconstruction and the Great Depression, and
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Thus far I have made the case that prisons are populated by people who are
disproportionately poor and African American. My next step is to demonstrate
that this is not a coincidence, in order to further support the claim that the
poor are losers in American criminal justice.
Mass incarceration’s process of control—the social and legal apparatus by
which poor people become losers in criminal justice—can be broken into five
steps.
(1) The spaces that poor people, especially poor African Americans, live in
receive more law enforcement in the form of police stops and arrests.32
(2) The criminal law deliberately ignores the social conditions that breed
some forms of law-breaking.33 Deprivations associated with poverty are
usually not “defenses” to criminal liability, although they may be factors
considered in sentencing.
(3) African Americans, who are disproportionately poor, are the target of
explicit and implicit bias by key actors in the criminal justice system,
including police, prosecutors,34 and judges.35
noting that “racial bias, though real and powerful, was . . . weaker than one might imagine”
and that “nothing comparable to the massive racial tilt in today’s drug prisoner population
existed in the Gilded Age North”).
32. See Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and
the Legitimacy of the Criminal Justice System, 73 SOC. RES. 445 (2006); Tracey Meares, Place
and Crime, 73 CHI.-KENT L. REV. 669 (1998). For an argument that the African-American
community actually benefits from more law enforcement, see RANDALL KENNEDY, RACE,
CRIME, AND THE LAW (1997), and for a critique of this argument, see Paul Butler, (Color)
Blind Faith: The Tragedy of Race, Crime, and the Law, 111 HARV. L. REV. 1270 (1998)
(reviewing KENNEDY, supra).
33. See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (2006); Richard Delgado,
“Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe
Environmental Deprivation?, 3 LAW & INEQUALITY 9, 9-10 (1985); see also Jones v. City of Los
Angeles, 444 F.3d 1118, 1120 (9th Cir. 2006) (holding unconstitutional under the Eighth
Amendment a Los Angeles ordinance criminalizing “sitting, lying, or sleeping on public
streets and sidewalks at all times and in all places”), vacated because of settlement, 505 F.3d
1006 (2007); United States v. Alexander, 471 F.2d 923, 957-65 (D.C. Cir. 1973) (Bazelon,
C.J., dissenting) (arguing that a “rotten social background” defense and corresponding jury
instruction may be appropriate in some cases).
34. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 3-42
(1997).
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(4) Once any person is arrested, she becomes part of a crime control system
of criminal justice, in which guilt is presumed.36 Prosecutors, using the
legal apparatus of expansive criminal liability, recidivist statutes, and
mandatory minimums,37 coerce guilty pleas by threatening defendants with
vastly disproportionate punishment if they go to trial.38
(5) Repeat the cycle. A criminal caste is created. Two-thirds of freed
prisoners are rearrested, and half return to prison, within three years of
35.
Prosecutors are more likely to charge black suspects than whites, even controlling for factors
like prior criminal record. See Robert J. Smith & Justin D. Levinson, The Impact of Implicit
Racial Bias on the Exercise of Prosecutorial Discretion, 35 SEATTLE U. L. REV. 795, 806 (2012).
While African Americans do not disproportionately use or sell drugs, they are over one-third
of those arrested for drug crimes. HUMAN RIGHTS WATCH, DECADES OF DISPARITY: DRUG
ARRESTS AND RACE IN THE UNITED STATES 4 (2009); HUMAN RIGHTS WATCH, TARGETING
BLACKS: DRUG ENFORCEMENT AND RACE IN THE UNITED STATES 3, 41-44 (2008). Research
on implicit bias suggests that blacks are more likely to be suspected of crime, convicted, and
punished for longer than others. For a summary of this research, see Smith & Levinson,
supra, at 800-01; see also ALEXANDER, supra note 29, at 103-05 (surveying research on racial
bias and criticizing the Supreme Court for “adopting rules that would maximize—not
minimize—the amount of racial discrimination that would likely occur”).
36. Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1, 11 (1964).
37. The Supreme Court has blessed this practice. In Bordenkircher v. Hayes, 434 U.S. 357 (1978),
Paul Hayes was charged with uttering a forged instrument in the amount of $88.30. The
maximum sentence for the offense was ten years, and the prosecutor offered to recommend
a five-year sentence in exchange for a guilty plea. The prosecutor also indicated that if there
was no guilty plea, he would charge Mr. Hayes under a recidivist statute that would require
a life sentence if Mr. Hayes was convicted. Mr. Hayes turned down the plea, the prosecutor
won his conviction, and Mr. Hayes received a life sentence. Id. at 358-59. The Supreme
Court found no constitutional violation, although it stated that “the breadth of discretion
that our country’s legal system vests in prosecuting attorneys carries with it the potential for
both individual and institutional abuse.” Id. at 365. For a powerful critique of prosecutorial
abuse of discretion in the plea-bargaining process, see Jonathan A. Rapping, Who’s
Guarding the Henhouse? How the American Prosecutor Came To Devour Those He Is Sworn To
Protect, 51 WASHBURN L.J. 513 (2012).
38.
John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REV. 3, 18 (1978) (“The
modern public prosecutor commands the vast resources of the state for gathering and
generating accusing evidence. We allowed him this power in large part because the criminal
trial interposed the safeguard of adjudication against the danger that he might bring those
resources to bear against an innocent citizen—whether on account of honest error,
arbitrariness, or worse. But the plea bargaining system has largely dissolved that
safeguard.”).
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their release.39
This description is not intended to be novel, or especially provocative.
Other observers of American criminal justice have made similar points about
the process by which being poor and African American increases the risk of
incarceration. Richard S. Frase, for example, writes that
poverty and lack of opportunity are associated with higher crime rates;
crime leads to arrest, a criminal record, and usually a jail or prison
sentence; past crimes lengthen those sentences; offenders released from
prison or jail confront family and neighborhood dysfunction, increased
risks of unemployment, and other crime-producing disadvantages; this
make them likelier to commit new crimes, and the cycle repeats itself.40
Michelle Alexander notes:
It is simply taken for granted that, in cities like Baltimore and Chicago,
the vast majority of young black men are currently under the control of
the criminal justice system or branded criminals for life. This
extraordinary circumstance—unheard of in the rest of the world—is
treated here in America as a basic fact of life, as normal as separate
water fountains were just a half century ago.41
What if every person accused of a crime had an excellent lawyer?
Proponents of Gideon suggest it would be an important step in making criminal
justice more equitable. For example, David Cole writes that the “story of the
enforcement of the right to counsel suggests that our failure to make good on
Gideon’s promise is no mere mistake. Rather, it is the single most important
mechanism by which the courts and society ensure a double standard in
constitutional rights protection in the criminal law.”42
In reality, full enforcement of Gideon probably would not significantly
impact the “double standard.” If mass incarceration and racial disparities were
caused by poor defense attorneys, it would make sense to think of Gideon as the
Patrick A. Langan & David J. Levin, Recidivism of Prisoners Released in 1994, BUREAU OF JUST.
STAT. 7 tbl.8 (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf.
40. Richard S. Frase, What Explains Persistent Racial Disproportionality in Minnesota’s Prison and
Jail Populations?, 38 CRIME & JUST. 201, 263 (2009).
41. ALEXANDER, supra note 29, at 176.
42. DAVID COLE, NO EQUAL JUSTICE 65 (1999).
39.
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appropriate solution. But, as the five-step process described above
demonstrates, defenders are not the cause.
I want to be careful not to discount the difference that an excellent defense
attorney can make, and how much this matters for individual clients. At the
same time, I don’t want to overclaim, as I believe Professor Cole does, that full
enforcement of Gideon would bring anything remotely resembling equality to
American criminal justice.
Empirical evidence of whether attorney ability makes a difference in trial
outcomes is inconclusive. An important study by James M. Anderson and Paul
Heaton suggests that public defenders in Philadelphia, compared to appointed
counsel, “reduce their clients’ murder conviction rate by 19%. They reduce the
probability that their clients receive a life sentence by 62%. Public defenders
reduce overall time served in prison by 24%.”43 Another study by David Abrams
and Albert Yoon suggests that “going from the tenth to ninetieth percentile of
public defender ability decreases the defendant’s expected sentence length by
5.8 months. . . . Clearly, the public defender to whom a defendant is
assigned . . . has a significant impact on how much time the defendant will
serve.”44 But another empirical study found that “the skill level of the defense
attorney plays no role in determining the outcome of a criminal trial in everyday
cases with non-celebrity defendants.”45
There is indirect evidence from courts that the scale of punishment of the
poor would not be reduced by more effective lawyers. In Strickland v.
Washington, the Supreme Court established a two-pronged test to determine
ineffective assistance of counsel.46 First, the counsel’s representation must fall
below an “objective standard of reasonableness.”47 Second, there must be a
“reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”48
In practice the tests rarely leads to a finding of ineffectiveness. I do not
want to suggest that the Strickland test is the appropriate measure of effective
43.
44.
45.
46.
47.
48.
James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of
Defense Counsel on Murder Case Outcomes, 122 YALE L.J. 154, 159 (2012).
David S. Abrams & Albert H. Yoon, The Luck of the Draw: Using Random Case Assignment To
Investigate Attorney Ability, 74 U. CHI. L. REV. 1145, 1166-67 (2007).
Jennifer Bennett Shinall, Note, Slipping Away from Justice: The Effect of Attorney Skill on Trial
Outcomes, 63 VAND. L. REV. 267, 291 (2010).
466 U.S. 668 (1984).
Id. at 688.
Id. at 694.
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assistance.49 I do want to suggest, however, that courts are probably correctly
applying the test. As stated above, the most favorable empirical evidence
suggests that more able defenders reduce average sentences by 24%. For
individual defendants, this reduction is very important. But even with a 24%
reduction in every sentence, American criminal justice would remain the
harshest and most punitive in the world. The poor, and especially poor people
of color, are its primary victims.
ii. the critique of rights 50
Robin West has described the critique of rights as “one of the most vibrant,
important, counterintuitive, challenging set of ideas that emerged from the
legal academy over the course of the last quarter of the twentieth century.”51
Many of these ideas were articulated as part of the critical legal studies
movement that began in the 1980s.52 In a seminal 1984 article, Mark Tushnet
described rights as unstable, indeterminate, overly abstract, and politically
harmful to the Left.53 The critique of rights was intended as an “act of creative
destruction that may help us build societies that transcend the failures of
49.
50.
51.
52.
53.
According to the National Right to Counsel Committee, a blue-ribbon panel that evaluated
the indigent counsel system, “Since Strickland was decided, commentators have been
virtually unanimous in their criticisms of the opinion.” NAT’L RIGHT TO COUNSEL COMM.,
CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA’S CONTINUING NEGLECT OF OUR
CONSTITUTIONAL RIGHT TO COUNSEL 40-41 (2009), http://www.constitutionproject.org
/pdf/139.pdf. The critiques of Strickland have focused on the difficulty defendants have in
proving that their cases would have come out differently had their lawyers performed better.
Courts usually hold that they would not have.
For seminal texts making the critique of rights, see Peter Gabel, The Phenomenology of RightsConsciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563 (1984); Duncan
Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178
(Wendy Brown & Janet Halley eds., 2002); and Mark Tushnet, An Essay on Rights, 62 TEX.
L. REV. 1363 (1984).
Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 WM. & MARY L.
REV. 713, 715 (2011).
For a longer description and intellectual history of the critique of rights, see Kennedy, supra
note 50.
Tushnet, supra note 50, at 1363-64. Tushnet’s critique was contextual, i.e., based on how
rights function in the United States. He observed: “[T]here is nothing odd about saying
that rights in Poland are a good thing, while rights in the United States are not. They are,
after all, different cultures.” Id. at 1382.
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capitalism.”54
The critique of rights has evolved to many sets of critiques.55 One
description on a website curated by a group of legal theorists who teach or have
taught at Harvard Law School summarizes five basic elements:
(1) The discourse of rights is less useful in securing progressive social
change than liberal theorists and politicians assume.
(2) Legal rights are in fact indeterminate and incoherent.
(3) The use of rights discourse stunts human imagination and mystifies
people about how law really works.
(4) At least as prevailing in American law, the discourse of rights reflects
and produces a kind of isolated individualism that hinders social solidarity
and genuine human connection.
(5) Rights discourse can actually impede progressive movement for
genuine democracy and justice.56
Most of the critiques make the claim that rights are indeterminate. The
proposition is that “the law is not a fixed and determined system, but rather an
unruly miscellany of various, multifaceted, contradictory practices, altering
from time to time and from context to context as different facets of law are
privileged or suppressed.”57 Robin West describes the indeterminacy thesis as
meaning that “the articulation of an interest as a ‘right’ by no means creates an
unmoveable bulwark against change, interference, or recalibration of the
protection of the various interests . . . toward which it so desperately strives.”58
54.
Id. at 1363 (footnote omitted).
See, e.g., West, supra note 51, at 716 (describing a “three-prong rights critique . . . that U.S.
constitutional rights politically insulate and valorize subordination, legitimate and thus
perpetuate greater injustices than they address, and socially alienate us from community”).
56. Critical Perspectives on Rights, BRIDGE, http://cyber.law.harvard.edu/bridge/CriticalTheory
/rights.htm (last visited Jan. 27, 2013).
57. Robert Gordon, Some Critical Theories of Law and Their Critics, in THE POLITICS OF LAW 641,
655 (David Kairys ed., 3d ed. 1998).
58. ROBIN WEST, NORMATIVE JURISPRUDENCE: AN INTRODUCTION 126 (2011).
55.
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Rights are indeterminate because they are too abstract to be useful in deciding
particular cases, or because they conflict with other rights. When social
progress occurs after a right is declared, it is because of the social and political
context in which the right is declared rather than the right itself.
Most critiques also claim that rights are regressive. Winning a “right” in a
court case either has no connection to advancing a political goal, or actually
impedes political goals.59 Gary Peller, for example, faults rights discourse for
constituting “a narrative of legitimation, a language for concluding that
particular social practices are fair because they are objective and unbiased.”60
Rights impede progressive change because they divert attention and resources
away from material deprivations, and, according to some theorists, because
rights are individual, rather than about the welfare of groups.61
Some critical race theorists “acknowledg[e] and affirm[ ] . . . that rights
may be unstable and indeterminate” but still provide a limited defense of
them.62 Patricia Williams, for example, maintains that “rights rhetoric has been
and continues to be an effective form of discourse for blacks.”63 In this view
rights build solidarity among rights holders,64 give voice to the previously
voiceless,65 and stigmatize subordination.66 Likewise, Kimberlé Crenshaw is
persuaded that “there simply is no self-evident interpretation of civil rights
inherent in the terms themselves,”67 but she finds the critique of rights
“incomplete” because it fails “to appreciate fully the transformative significance
of the civil rights movement in mobilizing Black Americans and generating
new demands.”68
63.
Tushnet, supra note 2, at 23.
Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 775. See generally Alan David Freeman,
Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of
Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978).
See MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 275-76 (1990).
Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22
HARV. C.R.-C.L. L. REV. 401, 409 (1987) (footnote omitted).
Id. at 410.
64.
Id. at 414.
59.
60.
61.
62.
65.
Id. at 425-26.
66. See Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities
Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305 (1987) (“Rights do, at times, give pause to those
who would otherwise oppress us.”).
67. Crenshaw, Race, Reform, and Retrenchment, supra note 16, at 1344.
68. Id. at 1356.
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iii. the critique of rights, applied to gideon
A law review article called The Right to Counsel in Criminal Cases, A National
Crisis begins with a series of stories in which criminal defendants were either
denied lawyers or had bad lawyers.69 This part of the article is titled “How Can
This Be Happening?”70 The critique of rights explains how. Using the five
elements just described, this Part attempts to demonstrate that Gideon
exemplifies the reasons for skepticism elucidated by the critique of rights.
A. The Liberal Overinvestment in Rights
Gideon was decided during the 1960s, a period during which, according to
Mark Tushnet, the Supreme Court took a “brief, perhaps aberrational, and
sometimes overstated role . . . in advancing progressive goals.”71 Perhaps that
was why it seemed, at the time, like a victory for the poor and minorities.
Gideon was one of those classic Warren Court opinions that provided hope not
just about criminal justice, but about economic and racial justice as well.72
That hope is long gone. If Gideon was supposed to make the criminal justice
system fairer for poor people and minorities, it has been a spectacular failure.
The National Right to Counsel Committee, a panel that was created in 2004 to
conduct a comprehensive survey of the state of indigent defense, reported:
The right to counsel is now accepted as a fundamental precept of
American justice. . . . Yet, today, in criminal and juvenile proceedings in
state courts, sometimes counsel is not provided at all, and it often is
supplied in ways that make a mockery of the great promise of the
Backus & Marcus, supra note 20, at 1031.
70. Id. at 1031.
71. Tushnet, supra note 2, at 34.
69.
72.
See Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure,
86 GEO. L.J. 1153, 1153 (1998) (“Law enforcement was a key instrument of racial repression,
in both the North and the South, before the 1960’s civil rights revolution. Modern criminal
procedure reflects the Supreme Court’s admirable contribution to eradicating this incidence
of American apartheid.”); cf. Michael J. Klarman, The Racial Origins of Modern Criminal
Procedure, 99 MICH. L. REV. 48 (2000) (describing the process by which egregious civil
rights violations motivated by race have historically led the Supreme Court to refine
constitutional criminal procedure).
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Gideon decision and the Supreme Court’s soaring rhetoric.73
Nancy Leong notes that Gideon has been “widely and accurately hailed as a
milestone in protecting the rights of individual defendants.”74 This assertion is
correct, as far as it goes. Gideon did protect the “rights” of defendants; it turns
out, however, that protecting defendants’ rights is quite different from
protecting defendants. Fifty years after Gideon, poor people have both the right
to counsel and the most massive level of incarceration in the world.75 As stated
earlier in this Essay, since Gideon, rates of incarceration (which, in the United
States, applies mainly to the poor) and racial disparities have multiplied.76 The
right to have a lawyer, at trial or even during the plea bargaining stage, has
little impact on either of those central problems.
What poor people, and black people, need from criminal justice is to be
stopped less, arrested less, prosecuted less, incarcerated less. Considering other
needs that poor people have—food and shelter—Mark Tushnet has stated,
“[D]emanding that those needs be satisfied—whether or not satisfying them
can today persuasively be characterized as enforcing a right—strikes me as
more likely to succeed than claiming that existing rights to food and shelter
must be enforced.”77
On its face, the grant that Gideon provides poor people seems more than
symbolic: it requires states to pay for poor people to have lawyers. But the
implementation of Gideon suggests that the difference between symbolic and
material rights might be more apparent than real. Indigent defense has been
grossly underfunded, where it is provided at all. Moreover, even if the defender
community were victorious in getting what it wanted out of Gideon—and the
experience of the last fifty years suggests that it will not be—American criminal
justice would still overpunish black and poor people. That is the unfairness
that the liberal investment in Gideon was supposed to contravene. A lawyer is
supposed to be a means to an end, not an end in herself. One problem with
Gideon is that it makes the lawyer the end. Robert Gordon noted that “[f]ormal
rights without practical enforceable content are easily substituted for real
NAT’L RIGHT TO COUNSEL COMM., supra note 49, at 2.
Nancy Leong, Gideon’s Law-Protective Function, 122 YALE L.J. 2460, 2462.
75. See Gopnik, supra note 18 (stating that “[n]o other country even approaches” the U.S.
incarceration rate).
76. See supra notes 9-10 and accompanying text.
77. Tushnet, supra note 50, at 1394.
73.
74.
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benefits.”78 In this sense Gideon and poor criminal defendants are friends
without benefits.
B. The Indeterminacy of Rights
On every anniversary of Gideon, liberals bemoan the state of indigent
defense. At its core, their claim is that Gideon has not been sufficiently
enforced. Indeed, many people would agree that the right to counsel has been
violated in cases where
defense counsel slept during portions of the trial, where counsel used
heroin and cocaine throughout the trial, where counsel allowed his
client to wear the same sweatshirt and shoes in court that the
perpetrator was alleged to have worn on the day of the crime, where
counsel stated prior to trial that he was not prepared on the law or the
facts of the case, and where counsel appointed in a capital case could
not name a single Supreme Court decision on the death penalty.79
As a practical matter, however, the right to counsel means whatever five or
more members of the Supreme Court say it does (or what the social
understanding of the right is80). In those cases, the Court found that the Sixth
Amendment was not abridged.81
I was part of a team of lawyers that litigated a right-to-counsel case in
Georgia. We alleged that, in capital cases, one county appointed counsel on the
basis of a low-bidding system. The attorney who agreed to take the case for the
least amount of money was the attorney that was appointed, without regard to
her competency to represent a defendant in a death penalty case. The trial
judge rejected our Sixth Amendment claim. I think we were right, and the trial
judge was wrong. I understand, however, that there is no way of applying the
Sixth Amendment’s words “in every prosecution, the accused shall enjoy the
78.
Gordon, supra note 57, at 657.
COLE, supra note 42, at 78-79 (footnotes omitted).
80. Though rights are analytically indeterminate, they may be culturally determined. For
example, a “colored only” sign on a public schoolhouse door could be said to be
unconstitutional, based on a cultural consensus about the Fourteenth Amendment, even if
that understanding doesn’t necessarily follow from the text of the Amendment, and even if
the Supreme Court were to declare legally segregated public schools to be constitutional.
81. COLE, supra note 42, at 78-79.
79.
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right . . . to have the Assistance of Counsel for his defence”82 to those facts and
obtaining an answer that is objectively right or wrong.
On one level the Gideon right is not abstract at all. It has a clear formal
content: a person cannot be sentenced to prison unless she is represented by
someone who is a member of the bar (or she waives this right). The problem is
that the right can be respected without accomplishing anything, as in the
above-described cases. In order to make the formal right meaningful, it must
be supplemented by some sort of standard-like provisions. But doing so
introduces a high level of abstraction that does not decide actual cases.
For example, a New York Times article about the Frye and Lafler decisions
that extended Gideon to the plea bargaining stage of the criminal process noted
that “legal scholars . . . used words like ‘huge’ and ‘bold’ to describe” the
decisions and quoted one legal scholar as saying, “I can’t think of another
decision that’s had any bigger impact than these two are going to have over the
next few years.”83 But the article goes on to state that “legal experts seem to
agree . . . that it was difficult to gauge what concrete effect the rulings would
have on everyday legal practice.”84 The Times quotes another legal scholar as
predicting that the cases would lead to a “flurry” of court filings, “but [that] very
few of them will succeed. . . . Courts are very good at tossing these cases out.”85
Under one formulation, the critique of rights means that “rights cannot
provide answers to real cases because they are cast at high levels of abstraction
without clear application to particular problems.”86 In this light, the first
recommendation of the National Right to Counsel Committee—that “[s]tates
should adhere to their obligation to guarantee fair criminal and juvenile
proceedings in compliance with constitutional requirements”—seems naïve.87
Most states would say they are already in compliance with the Constitution.
Yet commissions and panels in Georgia, Virginia, Louisiana, and Pennsylvania
have opined that these states are not in compliance with Gideon.88 Even the
82.
83.
84.
85.
86.
87.
88.
U.S. CONST. amend. VI.
Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals, N.Y. TIMES, Mar.
22, 2012, http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on
-plea-deals.html (quoting Professor Ronald F. Wright).
Id.
Id. (quoting Professor Stephanos Bibas).
Critical Perspectives on Rights, supra note 56.
NAT’L RIGHT TO COUNSEL COMM., supra note 49, at 183.
Backus & Marcus, supra note 20, at 1035-36.
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U.S. Department of Justice has acknowledged that “indigent defense in the
United States today is in a chronic state of crisis.”89 All of this sets up an
extended, and furious, battle about what Gideon requires. The indigent defense
community and the Supreme Court will agree sometimes, as in Frye and Lafler,
and disagree other times, as in Pennsylvania v. Finley,90 where the Court held
that a defendant has no right to counsel in habeas corpus proceedings, and
Gagnon v. Scarpelli,91 where the Court held that a defendant has no absolute
right to counsel at parole or probation revocation proceedings. Ultimately there
are no “right” or “wrong” answers—an answer is “right” if it persuades a court.
The vagaries of the Supreme Court’s interpretation of the quality of lawyering
that poor people are entitled to seem a risky foundation on which to position a
social justice movement.
C. Rights Discourse and Mystification
American criminal justice is brutal, which is why the United States has the
highest rate of incarceration in the world. This is what “law” does. The law
allows the police to forcibly stop someone for running away from them in a
high-crime neighborhood, even if the police have no other reason to suspect
them of a crime.92 The law allows life imprisonment for a first-time drug
offense.93 The law allows prosecutors to threaten someone with a life sentence
for a minor crime unless he pleads guilty.94
Yet we celebrate Gideon as the “law.” That makes the law seem much more
benign than it really is. Gideon’s announcement of a right to counsel appeared to
give the poor an agency in criminal justice that they actually do not have. And its
brutality would remain visited mainly on the poor. As Richard Delgado observed
in 1985, when the prison population was less than half the size it is now:
[O]f more than one million offenders entangled in the correctional
system, the vast majority are members of the poorest class. Unless we
89.
90.
91.
92.
93.
94.
OFFICE OF JUSTICE PROGRAMS & BUREAU OF JUSTICE ASSISTANCE, IMPROVING CRIMINAL
JUSTICE SYSTEMS THROUGH EXPANDED STRATEGIES AND INNOVATIVE COLLABORATIONS, at ix
(1999).
481 U.S. 551 (1987).
411 U.S. 778 (1973).
Illinois v. Wardlow, 528 U.S. 119 (2000).
Harmelin v. Michigan, 501 U.S. 957 (1991).
Bordenkircher v. Hayes, 434 U.S. 357 (1978).
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are prepared to argue that offenders are poor because they are criminal,
we should be open to the possibility that many turn to crime because of
their poverty—that poverty is, for many, a determinant of criminal
behavior.95
Imagine that many people charged with crimes are legally guilty, i.e., even
if these defendants have excellent defense counsel, the prosecution still can
prove beyond a reasonable doubt that they did what they are charged with
doing. Gideon encourages us to think of this state of affairs as “fair.” Consistent
with Peter Gabel’s and Jay Feinman’s description of contract law, Gideon
“mask[s] the extent to which the social order makes it difficult to achieve true
autonomy and solidarity” and “denies the oppressive nature of the existing
hierarchies.”96 The progressive investment in Gideon and the movement
building around the case makes it seem as though the “poverty and crime”
conversation is about the right to a lawyer in a criminal case, and not about the
kind of conduct that gets defined as crime, the racialized exercise of police
discretion, or why punishment is the state’s central intervention for AfricanAmerican men.
D. Isolated Individualism
Gideon is a narrative about individual rights rather than a plea for classbased or race-based relief. This is consistent with Wendy Brown’s observation
that “rights discourse . . . . converts social problems into matters of
individualized, dehistoricized injury and entitlement.”97 The Gideon narrative
even comes with a creation myth—Gideon’s Trumpet, the book and movie98—
that focuses on the plucky Clarence Earl Gideon, who wrote his petition for
cert on prison stationery, and once the Supreme Court awarded him his free
lawyer, won his case with the jury deliberating for less than an hour!
Mark Tushnet describes the “broad version” of the critique of rights as
requiring the “undermining [of] the individualism that vindicating legal rights
Delgado, supra note 33, at 10 (footnote omitted).
96. Peter Gabel & Jay Feinman, Contract Law as Ideology, in THE POLITICS OF LAW, supra note 57,
at 497, 498.
97. WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 124 (1995).
98. ANTHONY LEWIS, GIDEON’S TRUMPET (1964); GIDEON’S TRUMPET (Hallmark Hall of Fame
Productions 1980).
95.
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reinforces.”99 Gideon instructs us that we should respond to the problem that
eighty percent of people charged with crimes in the U.S. are poor by trying to
get a lawyer for a poor person charged with a crime.100 This will not solve the
problem. Then, of all the actors in the criminal justice system against whom
defendants might have a gripe, Gideon tells us it should be against the lawyers
who represent them.101 Gideon diffuses solidarity among the 2.3 million people
in the United States who are incarcerated. It changes the subject from mass
incarceration and racial subordination to private entitlement.
E. Rights Discourse as an Impediment to Progressive Social Movements
Gideon diverts attention from economic and racial critiques of the criminal
justice system. For example, this Essay appears in a Symposium issue of The
Yale Law Journal that observes the fiftieth anniversary of Gideon. The Yale Law
Journal has not devoted an entire issue to mass incarceration or racial
disparities in criminal justice. To the extent that some essays in the symposium
make racial critiques of American criminal justice, their authors, like me, must
situate those critiques within a discussion of Gideon and explain why the
critiques are still salient in light of Gideon.102 I do not think those tasks are
difficult, as this Essay hopefully demonstrates, but they do take time and
attention from the main problems—mass incarceration and racial disparities.
To the extent that scholarship makes any difference, the poor would be better
served by my learned coauthors and our able student editors focused explicitly
on ending those problems, as opposed to devoting hundreds of pages and work
hours analyzing why Gideon has not worked, or how it might work better. It’s
rather like a conference of esteemed scientists convening to discuss why holy
water does not cure cancer. Something interesting might come out of it, but
Tushnet, supra note 2, at 27.
100. See supra note 20.
101. U.S. District Judge Jed Rakoff makes a related point about the Supreme Court’s decisions in
Frye and Lafler. He notes that “most of the unfairness that occurs during the plea-bargaining
process is, in my experience, not the result of defense counsel’s ineffectiveness. Instead,
it is the result of overconfidence on the part of the prosecutors . . . .” Jed. S. Rakoff,
Frye and Lafler: Bearers of Mixed Messages, 122 YALE L.J. ONLINE 25, 26 (2012),
http://yalelawjournal.org/2012/06/18/rakoff.html.
102. See, e.g., Gabriel J. Chin, Race and the Disappointing Right to Counsel, 122 YALE L.J. 2236
(2013); David Patton, Federal Public Defense in An Age of Inquisition, 122 YALE L.J. 2578 (2013).
99.
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the public interest might be more efficiently served by focusing on an actual
cure.
In addition to its diversion function, Gideon also provides a legitimation of
the status quo. As discussed in Part I, the poor—especially the poor and
black—are incarcerated at exponentially greater levels now than when Gideon
was decided. If more poor people are represented by lawyers because of Gideon,
arguably their trials or plea bargains are fairer than before Gideon, when they
did not have lawyers. Thus, the poor have simultaneously received a fairer
process and more punishment. Gideon makes it more work—and thus more
difficult—to make economic and racial critiques of criminal justice. This is not
to say people cannot and do not make those claims, but rather that Gideon
makes their arguments less persuasive. It creates a formal equality between the
rich and the poor because now they both have lawyers. The vast
overrepresentation of the poor in America’s prisons appears more like a
narrative about personal responsibility than an indictment of criminal justice.
In the words of one commentator, “Procedural fairness not only produces faith
in the outcome of individual trials; it reinforces faith in the legal system as a
whole.”103
If prosecutors had brought most of their cases against the poor during the
pre-Gideon era when most indigent defendants did not have lawyers,
prosecutors would have looked like bullies. Since Gideon, the percentage of
prosecutions against the poor has increased from 43% to 80%.104 American
prosecutors have so much discretion, and there are so many criminal laws, that
they can bring a case against virtually whomever they choose.105 Prosecutors
Michael O’Donnell, Crime and Punishment: On William Stuntz, NATION, Jan. 10, 2012,
http://www.thenation.com/article/165569/crime-and-punishment-william-stuntz.
104. See Stuntz, supra note 17, at 7 n.7.
105. See Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting) (“With the law
books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at
least a technical violation of some act on the part of almost anyone. In such a case, it is not a
question of discovering the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching the law books, or
putting investigators to work, to pin some offense on him. It is in this realm—in which the
prosecutor picks some person whom he dislikes or desires to embarrass, or selects some
group of unpopular persons and then looks for an offense, that the greatest danger of abuse
of prosecuting power lies. It is here that law enforcement becomes personal, and the real
crime becomes that of being unpopular with the predominant or governing group . . . .”
(quoting Attorney General [and future Supreme Court Justice] Robert H. Jackson, The
Federal Prosecutor, Address at the Second Annual Conference of United States Attorneys
(Apr. 1, 1940), in 31 J. CRIM. L. & CRIMINOLOGY 3, 5 (1940))). 103.
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have mostly chosen the poor, but now, because of Gideon, they look like less
like bullies.
The critique of rights posits that “rights discourse contributes to passivity,
alienation, and a sense of inevitability about the way things are.”106 Gideon
encourages the view that fairness for poor people is an issue of criminal
procedure, not criminal law.107 When it establishes a procedural right, and the
poor and racial minorities still complain, mass incarceration and racial
disparities start to seem inevitable. When the problem is lack of a right, one
keeps going to court until a court declares the right. When the problem is
material deprivation suffered on the basis of race and class, where, exactly, does
one go for the fix? The Conclusion of this Essay recommends some places.
In applying the critique of rights to Gideon, I do not want to discount the
important concerns raised by some critical race theorists. The critical race
response to the critique of rights exhibits a discordant duality about rights that
in some ways accords with this Essay’s analysis of Gideon. As described in Part
II, critical race theorists posit that rights are unstable and incoherent but still
might be good for people of color. This Essay suggests that Gideon is
profoundly limited and limiting, and yet a force for certain sources of good (for
example, Gideon authorizes the office of the public defender in Philadelphia
that, compared to appointed counsel, gets shorter sentences for its clients108).
Even more significantly, Gideon may save the lives of defendants in capital
cases, who, occasionally, get better lawyers than they would in a world without
Gideon.
iv. other comments on rights discourse in criminal
procedure
Other scholars have also noted the limits of criminal procedural rights to
establish racial or social justice. I note three influential analyses of criminal
procedure that accord in some ways with this Essay’s application of the critique
of rights to Gideon (and in other ways diverge). Professors Louis Michael
Seidman, Michael Klarman, and William Stuntz have each observed the failure
106.
Critical Perspectives on Rights, supra note 56.
Stuntz, supra note 17, at 72 (“Why has constitutional law focused so heavily on criminal
procedure, and why has it so strenuously avoided anything to do with substantive criminal
law . . . ?”).
108. See Anderson & Heaton, supra note 43.
107.
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of criminal rights discourse, in specific contexts, to improve fairness in criminal
justice.
In Brown and Miranda,109 Professor Seidman examined the meaning of two
of the most famous Supreme Court decisions: Brown v. Board of Education110
and Miranda v. Arizona.111 Seidman argues that, contrary to conventional
understanding, “the decisions did not mandate a vast restructuring of power
relationships. Rather, the decisions have served to justify and legitimate
arrangements that would otherwise be severely threatened by constitutional
rhetoric.”112 He believes that both decisions “served to stabilize and legitimate
the status quo by creating the illusion of closure and cohesion.”113
For Miranda, specifically, Seidman posits that there is “a good deal of
evidence that Miranda, like Brown, traded the promise of substantial reform
implicit in prior doctrine for a political symbol.”114 He acknowledges “some
truth”115 to the claim that the decision, which requires that the police advise
suspects in custody of their privilege against self-incrimination, empowers
individuals who are subject to police questioning. But Seidman notes that the
Court had, in a series of cases decided prior to Miranda, already held that the
people subject to interrogation while in custody had the right to counsel.116
Miranda’s real purpose was to articulate a mechanism for waiver of the right.117
Citing data that suggests that Miranda did not decrease the number of
defendants who confess, Seidman questions whether, for criminal suspects,
“Miranda is serving any useful purpose.”118
While Seidman does not explicitly invoke the critique of rights, his analysis
is consistent with its view that rights discourse does not necessarily lead to
social change, and that it may impede social justice. In Miranda, he states, “the
Court tamed the contradictions that would otherwise continually threaten the
Louis Michael Seidman, Brown and Miranda, 80 CALIF. L. REV. 673 (1992).
347 U.S. 483 (1954).
111. 384 U.S. 436 (1966).
112. Seidman, supra note 109, at 680.
109.
110.
113.
Id. at 719.
114.
Id. at 746.
Id. at 743.
116. Id. at 744 (“Escobedo, Massiah, and Culombe had already created all the rights any defendant
needed.”).
117. Id.
118. Id. at 744 & n.236.
115.
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legitimacy of punishment in a liberal democracy.”119 He adds that
Brown and Miranda created a world where we need no longer be
concerned about inequality because the races are now definitionally
equal and a world where we need no longer be concerned about official
coercion because defendants have definitionally consented to their
treatment. . . . Brown and Miranda let us blame the victim in a way we
never could under the old regime.120
The two decisions diffuse the dissent that might be expected by the existence of
a permanent racially defined underclass because they provide an “amusementpark version of social change.”121
In The Racial Origins of Modern Criminal Procedure,122 Professor Michael
Klarman links the development of constitutional criminal procedure to an
effort by the Supreme Court to advance racial justice in the South in the era
before World War II. He examines four landmark cases in which the Supreme
Court held that convictions obtained in mob-dominated trials violated the
Fourteenth Amendment right to due process of law, established a right to
counsel in capital cases, invalidated a conviction because blacks had been
intentionally excluded from the jury, and declared that the right to due process
made confessions based on torture inadmissible.123
According to Klarman, “none of these rulings had a very significant direct
impact on Jim Crow justice. For example, few blacks sat on southern juries as a
result of Norris v. Alabama, and black defendants continued to be tortured into
confessing, notwithstanding Brown v. Mississippi.”124 Klarman diverges from
the critique of rights, however, in his hopeful analysis of the indirect effects of
the cases. He advances the possibility that these cases were “more important
for their intangible effects: convincing blacks that the racial status quo was not
impervious to change; educating them about their rights providing a rallying
119.
Id. at 747.
120. Id. at 752.
121. Id. at 753.
Klarman, supra note 72.
123. Id. at 50. The cases are Moore v. Dempsey, 261 U.S. 86 (1923), which forbade mob trials;
Powell v. Alabama, 287 U.S. 45 (1932), which required the provision of counsel in capital
cases; Norris v. Alabama, 294 U.S. 587 (1935), which reversed the verdict of an intentionally
racially exclusive jury; and Brown v. Mississippi, 297 U.S. 278 (1936), which made
confessions obtained by torture inadmissible.
124. Klarman, supra note 72, at 49.
122.
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point around which to organize a protest movement; and perhaps even
instructing oblivious whites as to the egregious nature of Jim Crow
conditions.”125
Finally, Professor William Stuntz noticed certain “perverse”126 effects of
criminal procedure: as rights have expanded, things have gotten worse for
accused persons. Specifically, “underfunding, overcriminalization, and
oversentencing have increased as criminal procedure has expanded.”127 The
problem is that actors in the criminal justice system can respond to judicial
declarations of rights “in ways other than obeying them.”128 States reacted to
Warren Court criminal procedure holdings by making the substantive criminal
law more punitive, to compensate for the rights provided to accused persons.
The result was that criminal cases were focused on procedure. Stuntz believes
that this caused American criminal justice to “unravel.”129 Rather than focus on
procedural rights, the Warren Court should have used “the federal Bill of
Rights . . . to advance some coherent vision of fair and equal criminal
justice.”130 Stuntz’s critique is not so much a critique of rights as a critique of
the Court’s reliance on procedural rights specifically. 131
One lesson we might garner from these three commentators is that
procedural rights may be especially prone to legitimate the status quo, because
“fair” process masks unjust substantive outcomes and makes those outcomes
seem more legitimate. In contrast, a right to a minimum wage, while it may
legitimate unequal distribution of wealth, substantively improves the condition
of the least well-off in material ways.
conclusion: critical tactics
According to David Cole, “the most troubling lesson of the more than
125.
Id. at 88.
Stuntz, supra note 17, at 3.
127. Id.
126.
128.
Id.
STUNTZ, supra note 31, at 1.
130. Id. at 227-28.
131. But see Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 144243 (2012) (reviewing STUNTZ, supra note 31) (noting that “the Critical Legal Studies
movement . . . could have embraced Stuntz’s rights critique as a diagnosis of a brilliant false
consciousness-raising mechanism of legitimation in the service of hierarchy”).
129.
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thirty-five years since Gideon v. Wainwright is that neither the Supreme Court
nor the public appears to have any interest in making the constitutional right
announced in Gideon a reality.”132 This should not have come as a surprise. The
real surprise is the continued investment in rights discourse.
Duncan Kennedy observes that “critique is always motivated.”133 My
motivation in applying the critique of rights to Gideon is to cause people who
want to reform, or transform, American criminal justice to recalibrate their
methods.
First, I want to be especially clear on one point. People should still become
criminal defense attorneys. The most important good that defense attorneys do
is helping individual clients. Reducing potential sentences by six months, as
one study suggests that effective defense counsel can, makes an enormous
difference in the lives of incarcerated people and their families.134 Effective
defense attorneys can also increase the cost of prosecution, and, in theory, this
has the potential to reduce mass incarceration on a macro level. Excellent
defense attorneys might disrupt one or more steps of the five-step process
described in Part II by which the criminal law establishes control over poor
people. For example, disproportionate stops and arrests of poor African
Americans might be inhibited by aggressive litigation.
Thus, defense attorneys should continue to fight for the resources that they
need to effectively represent their clients.135 But everyone should understand,
first, that those resources are not likely to result from raising Gideon-based
claims in court, and second, that Gideon has not, and will not, change the fact
that in American criminal justice, poor people are losers.
The idea of abandoning rights discourse is not as radical as it sounds;
rather, it is consistent with the disillusionment, especially on the Left, about
the value of going to courts to resolve claims of racial or economic injustice.
Professors Cummings and Eagly have described “a new orthodoxy that is
deeply skeptical of the usefulness of legal strategies to promote social
change.”136
132.
COLE, supra note 42, at 64.
Kennedy, supra note 50, at 218.
See Abrams & Yoon, supra note 44, at 166-67.
135. Abbe Smith, Defense Lawyering in a Time of Mass Incarceration, 70 WASH. & LEE L. REV. 1363
(2013).
136. Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 NW. U. L. REV. 1251,
1255 (2006) (reviewing JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR
IMMIGRANT RIGHTS (2005)).
133.
134.
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poor people lose
So what should people do? I am less certain about what methods will
transform criminal justice than I am certain that Gideon discourse will not. I do
not view that uncertainty as a flaw in my thesis.137 If people believe that holy
water cures cancer, it is a contribution to demonstrate that it does not, even if
one does not himself have an actual cure to offer. Thus, rather than profess
absolute remedies to mass incarceration and racial disparities, I can offer a few
tentative suggestions on how criminal reformers can, in hip-hop parlance, “act
like they know” that rights discourse does not work.138
Mark Tushnet notes that proceeding with an awareness of the critique of
rights allows progressives “to improve the accuracy of the calculation of the
possible benefit of investing in legal action rather than in something else—
street demonstrations, public opinion campaigns, or whatever.”139 In the
criminal justice context, the goal is to prevent poor people and African
Americans from being losers in criminal justice, or at least from losing as badly
as they do now. Advocates for the poor, for racial minorities, and for criminal
defendants should abandon rights discourse and rather focus on reducing the
number of poor people overall, and African Americans specifically, who are
incarcerated.
The two apparatuses that bear the most responsibility for the massive
increase in incarceration and racial disparities since Gideon are the “war on
drugs” and the “tough-on-crime” movement. Legalizing or decriminalizing
drugs would do some work toward reducing both incarceration overall, and the
racial disparities (or, for the latter, at least bring them closer to the two-to-one
disparity that existed before the war on drugs, as opposed to the seven-to-one
disparity that now exists).140
The 2.3 million people who are locked up in the United States, and their
families and friends, have the potential to form a huge social movement against
mass incarceration. The critique of rights suggests that historians or political
137.
See Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished
Alternatives, 8 UNBOUND: HARV. J. LEGAL LEFT (forthcoming 2013) (calling for “an openness
to unfinished alternatives—a willingness to engage in partial, in process, incomplete
reformist efforts that seek to displace conventional criminal law administration as a primary
mechanism for social order maintenance”).
138. The Urban Dictionary defines “act like you know” as “recognize, stop playing, or stop
playing crazy.” Act Like You Know, URBAN DICTIONARY, http://www.urbandictionary
.com/define.php?term=Act%20like%20you%20know (last visited Mar. 29, 2013).
139. Tushnet, supra note 2, at 25.
140. See supra notes 27-28 and accompanying text.
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scientists are better consultants than lawyers in fashioning the best methods for
achieving this goal. One animating question might be: What was responsible
for social justice advances, like emancipation, that resulted in material gains for
African Americans and the poor?
Michelle Alexander has proposed that as many criminal defendants as
possible go to trial in an effort to “crash the justice system.”141 The idea is to
create chaos in the criminal justice system to make ending mass incarceration a
priority for politicians and to force a public conversation about it. In other
work I have recommended jury nullification as a way of reducing the number
of people who are incarcerated for nonviolent, victimless crime.142
Some efforts are already underway. In New York, there have been public
demonstrations and civil disobedience to reduce excessive law enforcement in
minority communities, especially the police practice of “stop, question, and
frisk.”143 A group called Critical Resistance is one of the leaders of the prison
abolition project to reduce the reliance on incarceration.144 All of Us or None is
an organization of formerly incarcerated people working to end discrimination
against people with conviction histories.145 These efforts provide limited
optimism that if criminal justice reformers focus on reducing incarceration
rather than increasing rights, the poor can lose less.
141.
142.
143.
144.
145.
Michelle Alexander, Editorial, Go to Trial: Crash the Justice System, N.Y. TIMES, Mar.
10, 2012, http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice
-system.html.
See PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE (2009); Paul Butler,
Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677
(1995).
See Matthew Deluca & Jose Martinez, NYPD’s Stop and Frisk Tactics Protested in Harlem;
Princeton Prof. Cornel West Among Those Arrested, N.Y DAILY NEWS, Oct. 21, 2011,
http://www.nydailynews.com/new-york/nypd-stop-frisk-tactics-protested-harlem-princeton
-prof-cornel-west-arrested-article-1.965480.
CRITICAL RESISTANCE, http://criticalresistance.org (last visited Apr. 3, 2013).
All of Us or None, LEGAL SERVICES FOR PRISONERS WITH CHILDREN, http://www
.prisonerswithchildren.org/our-projects/allofus-or-none (last visited Apr. 3, 2013).
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